Roberts v. Levine

• Court: District Court, S.D. California
• Decided: October 31, 2019
• Docket: 3:19-cv-00567
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 SOUTHERN DISTRICT OF CALIFORNIA 6 7 JEFFREY ROBERTS, Case No.: 19-cv-567-WQH-BLM

8 Plaintiff, ORDER 9 v. 10 ANJALI STOKES LEVINE; LOUISE MOYA STOKES; and 11 ANIL KUMAR STOKES, 12 Defendants. 13 HAYES, Judge: 14 The matters before the Court are 1) the Motion to Set Aside Entry of Default 15 Pursuant to Fed. R. Civ. P. 55(c) and Quash Service of Process filed by Defendant Anjali 16 Levine (ECF No. 19); 2) the Motion to Strike Portions of First Amended Complaint filed 17 by Defendants Anjali Levine, Louise Stokes, and Anil Stokes (ECF No. 22); 3) the Motions 18 to Dismiss First Amended Complaint for Failure to State a Claim Upon Which Relief Can 19 Be Granted Pursuant to Fed. R. Civ. P. 12(b)(6) filed by Anjali Levine (ECF No. 23), 20 Louise Stokes (ECF No. 24), and Anil Stokes (ECF No. 25); and 4) the Motion Regarding 21 Choice of Law filed by Plaintiff Jeffrey Roberts (ECF No. 32). 22 I. BACKGROUND 23 A. Procedural History 24 On March 28, 2019, Plaintiff initiated this action by filing a Complaint. (ECF No. 25 1). Plaintiff filed Proofs of Service as to Louise Stokes and Anil Stokes on April 6, 2019 26 (ECF Nos. 3-4), and as to Anjali Levine on April 15, 2019 (ECF No. 5). Louise Stokes and 27 Anil Stokes filed Motions to Dismiss the Complaint on April 29, 2019 (ECF Nos. 6-7), but 28 1 Anjali Levine never filed a responsive pleading. On May 1, 2019, Plaintiff filed a Request 2 for Entry of Default as to Anjali Levine. (ECF No. 9). The Clerk entered default on May 3 2, 2019. (ECF No. 2). 4 Plaintiff filed an Amended Complaint on May 21, 2019. (ECF No. 13). Plaintiff 5 brings claims against Anjali Levine and Louise Stokes for 1) intentional infliction of 6 emotional distress (“IIED”); 2) assault and battery; 3) violation of the Bane Act, section 7 52.1 of the California Civil Code; 4) invasion of privacy; 5) civil harassment; 6) stalking; 8 7) fraud; 8) deceit; 9) scheme to defraud and communications fraud in violation of section 9 817.034 of the Florida Statutes; 10) violation of the Racketeering Influenced Corrupt 10 Organizations Act (“RICO”), 18 U.S.C. §§ 1961 et seq.; 11) malicious civil conspiracy; 11 and 12) stalking and harassment. Plaintiff brings claims against Anil Stokes for 1) 12 malicious civil conspiracy; and 2) aiding and abetting. Plaintiff seeks damages, including 13 punitive damages and attorneys’ fees and costs. Id. at 32. Plaintiff also seeks an injunction 14 against Anjali Levine and Louise Stokes “against further possession or control of Plaintiff’s 15 private information.” Id. at 33. 16 On May 23, 2019, Anjali Levine filed a Motion to Set Aside Entry of Default and 17 Quash Service of Process. (ECF No. 19). Plaintiff did not file a response. 18 On June 6, 2019, Defendants filed a Motion to Strike portions of the Amended 19 Complaint. (ECF No. 22). Defendants each filed a Motion to Dismiss the Amended 20 Complaint. (ECF Nos. 23-25). 21 On July 15, 2019, Plaintiff filed a Response in Opposition to Defendants’ Motion to 22 Strike and Motions to Dismiss. (ECF No. 26). On July 24, 2019, Defendants filed a Reply 23 in support of their Motion to Strike (ECF No. 28) and Replies in support of their Motions 24 to Dismiss (ECF Nos. 29-31). 25 On July 29, 2019, Plaintiff filed a Motion Regarding Choice of Law. (ECF No. 32). 26 On August 19, 2019, Defendants filed a Response in Opposition to Plaintiff’s Choice of 27 Law Motion. (ECF No. 34). Plaintiff did not file a reply. 28 /// 1 B. Factual Allegations in the FAC 2 Plaintiff is a divorced, Orthodox Jewish rabbi with two children, living in Palm 3 Beach County, Florida. Plaintiff alleges that in September 2011, he met Anjali Levine on 4 frumster.com, a dating website for Orthodox Jews. On Plaintiff’s frumster.com profile, he 5 “represented himself . . . [as] a religious teacher and counselor . . . .” ECF No. 13 at 3. 6 Plaintiff alleges that, around this same time, Anjali Levine’s mother, Louise Stokes, 7 reached out to Plaintiff via Facebook Messenger. Plaintiff alleges that Louise Stokes sought 8 Plaintiff’s counseling and guidance regarding Louise Stokes’ marriage to Anil Stokes, her 9 plans to divorce Anil Stokes, her desire to convert to Judaism, her financial difficulties, 10 and her sick mother. 11 Plaintiff alleges that, after “numerous phone calls over several months, Anjali 12 Levine requested to meet Plaintiff in person.” Plaintiff alleges that Anjali Levine planned 13 to fly from California, where she lived, to visit Plaintiff in Florida in January 2012. Plaintiff 14 alleges that Anjali Levine forwarded Plaintiff “an authentic-appearing paid-for e-ticket 15 flight itinerary.” Shortly before the flight, Anjali Levine cancelled the visit. Plaintiff alleges 16 that this cancelled trip was the first of many. Plaintiff alleges that between 2011 and 2017, 17 Anjali Levine and/or Louise Stokes would send Plaintiff “authentic-appearing e-tickets.” 18 These tickets were intended to “dupe” Plaintiff into believing that Anjali Levine and/or 19 Louise Stokes were in Florida attempting to meet him. Plaintiff alleges that Anjali Levine 20 and Louise Stokes intended to harass Plaintiff, and Anjali Levine had no intention of ever 21 meeting him. Id. at 4. 22 Plaintiff alleges that there were approximately fifteen trips between 2011 and 2017 23 where Anjali Levine “misrepresented” to Plaintiff that she attempted to visit Florida but 24 could not board the plane. There were also six trips where Anjali Levine and Louise Stokes 25 allegedly told Plaintiff that Anjali Levine was in Florida but was too scared to meet Plaintiff 26 in person. Id. at 8. Plaintiff alleges that he saw photos on Facebook of Anjali Levine in 27 New York or California when she claimed to be in Florida. 28 1 Anjali Levine’s second failed trip occurred in March 2012. Plaintiff alleges that he 2 received a booking confirmation from a Palm Beach hotel showing that Anjali Levine paid 3 $368, non-refundable, for a room. Anjali Levine did not show up at the hotel. When 4 Plaintiff pressed Anjali Levine about her failure to come to Florida, Anjali Levine told 5 Plaintiff that she was “afraid to meet him in person” because she was a victim of childhood 6 sexual assault. Id. at 4. Plaintiff alleges that he was genuinely concerned and cared for 7 Anjali Levine. Plaintiff counseled Anjali Levine and Louise Stokes on how to deal with 8 Anjali Levine’s trauma. Anjali Levine and Louise Stokes confided to Plaintiff that Anjali 9 Levine had suffered from an eating disorder, insomnia, and nervous breakdowns and that 10 Anil Stokes was suffering from Parkinson’s disease. Plaintiff alleges that Anjali Levine 11 visited a therapist who was “utterly convinced Anjali was telling the truth.” Id. ¶ 36. 12 Plaintiff alleges that Anjali Levine and Louise Stokes’ representations were false. Anjali 13 Levine, Louise Stokes, and Anil Stokes’ ailments were “invented” in order to “appeal[] to 14 Plaintiff’s sympathy as a religious teacher and counselor to . . . manipulate, control, 15 psychologically abuse, and defraud Plaintiff.” Id. at 11. Plaintiff alleges that he became 16 emotionally involved in Anjali Levine’s welfare, pouring “years of counseling, care, 17 money, and effort” into Anjali Levine’s psychological well-being at the expense of his own 18 health. Id. at 6. Plaintiff alleges he suffered from 1) chest pain caused by the stress of Anjali 19 Levine allegedly planning to visit him; 2) pneumonia; 3) fever and skin lesions requiring 20 surgery; 4) blackouts from abnormal blood pressure; and 5) severe emotional distress. Id. 21 at 15-16. 22 Plaintiff alleges that Anjali Levine expressed to Plaintiff that she had “romantic and 23 even sexual fantasies about him.” Anjali Levine sent Plaintiff and his children gifts, 24 including a $488 leather briefcase. Plaintiff alleges that Anil Stokes “was aware of and 25 financially enabled Anjali’s and Louise’s interactions with Plaintiff.” Id. at 7. Plaintiff 26 alleges that Anjali Levine’s claims of romance were insincere, and the gifts were intended 27 to trick Plaintiff into believing her lies. 28 1 Plaintiff alleges that Defendants invited him to visit Anjali Levine on eight occasions 2 in New York, Irvine, or Washington, D.C. Plaintiff alleges that when Plaintiff traveled to 3 meet Anjali Levine, she was either not in the city she had claimed to be in or she “actively 4 avoided” Plaintiff during his visit. Plaintiff alleges Anjali Levine “admitted to Plaintiff that 5 she had stalked Plaintiff,” and she appeared in photos on Facebook less than a mile from 6 Plaintiff’s house on dates when she told Plaintiff she was in California or New York. Id. at 7 10. Plaintiff alleges that Anjali Levine and Louise Stokes would “frantically call[], text[], 8 and arrange[] meetings . . . day after day where they kept him waiting as long as possible, 9 playing on his sympathy and begging for his counsel and support.” Id. at 12. Plaintiff 10 alleges that on “June 27, 2017, Plaintiff suspected fraudulent intentions on Anjali’s and 11 Louise’s behalf.” Plaintiff “told Anjali he did not want to live knowing she had deceived 12 him in order to test Anjali’s reactions.” Anjali Levine “urged [Plaintiff] to kill himself 13 immediately.” Id. at 14. 14 Plaintiff alleges that between 2011 and 2017, he sent Anjali Levine approximately 15 $8,000 in gifts and cash, based on false representations from Anjali Levine and Louise 16 Stokes that they needed money to pay for Anjali Levine’s therapy, travel expenses, and 17 school. Anjali Levine “regularly expressed her desire to receive gold jewelry.” Id. at 21. 18 Plaintiff alleges that Anjali Levine “bragged” to Plaintiff that she conducted schemes to 19 obtain gifts and money from other Orthodox Jewish men, whom she contacted via 20 Facebook or frumster.com. Id. at 22. 21 II. MOTION TO SET ASIDE DEFAULT AND QUASH SERVICE 22 Anjali Levine contends that the Court should set aside entry of default and quash 23 service of process because service of process was defective.1 (ECF No. 19-1 at 8). Anjali 24 25 1 Anjali also requests that the Court take judicial notice of the Motions to Dismiss the Complaint filed by 26 Louise and Anil. (Vokshori Decl., ECF No. 19-5 ¶ 3). Judicial notice of the requested documents is unnecessary for this Order. Anjali’s request for judicial notice is denied. See Asvesta v. Petroustas, 580 27 F.3d 1000, 1010 n. 12 (9th Cir. 2009) (denying request for judicial notice where judicial notice would be “unnecessary”). 28 1 Levine contends that no one served her personally on April 9, 2019, or any other day. 2 Instead, an envelope with Anjali Levine’s name was left at the front desk of her office on 3 April 16, 2019. Id. at 14. 4 Pursuant to Federal Rule of Civil Procedure 55(c), a court may set aside an entry of 5 default for good cause. “Failure to properly serve a defendant with process pursuant to Fed. 6 R. Civ. P. 4 constitutes good cause to set aside an entry of default.” Koninklijke Philips 7 Elecs. N.V. v. KXD Tech., Inc., 245 F.R.D. 470, 472 (D. Nev. 2007). 8 Federal Rule of Civil Procedure 4(e) governs service of process on individuals 9 within a judicial district of the United States. Rule 4(e) provides that a plaintiff may serve 10 an individual by: 11 (1) following state law for serving a summons in an action brought in the courts of general jurisdiction in the state where the district court is located 12 or where service is made; or 13 (2) doing any of the following: 14 (a) delivering a copy of the summons and of the complaint to the 15 individual personally; 16 (b) leaving a copy of each at the individual’s dwelling or usual place 17 of abode with someone of suitable age and discretion who resides 18 there; or

19 (c) delivering a copy of each to an agent authorized by appointment 20 or by law to accept service.

21 California state law allows for service upon an individual by 1) delivering a copy of the 22 summons and complaint by “personal delivery . . . to the person to be served;” 2) substitute 23 service combined with mailing after a good faith effort at personal service has been 24 attempted; or 3) service by publication. Cal. Code Civ. Proc. §§ 415.10, 415.20, 415.30, 25 415.50. Manners of substitute service include “leaving a copy of the summons and 26 complaint during usual office hours in his or her office” or “leaving a copy of the summons 27 28 1 and complaint at the person’s . . . usual place of business . . . in the presence of . . . a person 2 apparently in charge of his or her office.” Cal. Code Civ. Proc. § 415.20(a)-(b). 3 Here, Plaintiff bears the burden of establishing that service of process was proper, 4 because default judgment has not been entered. Brockmeyer, 383 F.3d at 801. Plaintiff fails 5 to meet his burden. See SEC v. Internet Solutions for Bus., Inc., 509 F.3d 1161, 1163 (9th 6 Cir. 2007) (“[A] signed return of service constitutes prima facie evidence of valid service 7 . . . .”). Anjali Levine has submitted Declarations and Exhibits that call the Proof of Service 8 into question, and Plaintiff has not submitted additional evidence of proper service. 9 Plaintiff’s failure to show Anjali Levine was properly served constitutes good cause to set 10 aside the entry of default, even though the Complaint is no longer the operative complaint 11 in this matter. Rhodes v. Robinson, 621 F.3d 1002, 1005 (9th Cir. 2010) (“[W]hen a 12 plaintiff files an amended complaint, the amended complaint supersedes the original, the 13 latter being treated thereafter as non-existent.”) (quotation omitted). Anjali Levine’s 14 Motion to Set Aside Default and Quash Service of Process (ECF No. 19) is GRANTED. 15 III. CHOICE OF LAW MOTION 16 Plaintiff contends that the Court should apply Florida substantive law to Counts Nine 17 and Ten of the Amended Complaint, which Plaintiff has brought for violations of the 18 Florida Communications Fraud Act (“FCFA”), section 817.034 of the Florida Statutes. 19 Plaintiff contends that there is “no California equivalent” to the FCFA. (ECF No. 32 at 1). 20 Plaintiff contends that the FCFA is different from both California common law fraud and 21 California’s codified tort of deceit, because “each of the California [laws] only address 22 liability for specific actions, whereas the very purpose of Florida Statutes § 817.034 is to 23 address ‘a systematic, ongoing course of conduct . . . .’” Id. at 2 (quoting Fla. Stat. § 24 817.034(3)(d)). Plaintiff contends that Florida and California’s fraud and deceit laws exist 25 to protect persons in their states. Plaintiff’s location during the underlying events should, 26 therefore, determine which law governs. Plaintiff contends that the Court should also apply 27 Florida substantive law to Count Twelve for malicious civil conspiracy, because Florida 28 and California civil conspiracy laws are designed to protect the citizens of their respective 1 states. “Defendants should be held accountable under Florida law for actions directed at a 2 Plaintiff in Florida.” (ECF No. 32 at 2). 3 Defendants contend that Plaintiff fails to meet his burden to show the Court should 4 apply Florida law. (ECF No. 34 at 5). Defendants contend that the FCFA “is not applicable 5 to the facts alleged in the matter and thus there is no conflicting law to choose from.” Id. 6 at 10. Defendants contend that the FCFA does not apply because Defendants did not 7 conceal their names or attempt to sell Plaintiff any service or product. Id. at 11. Defendants 8 contend that, if the FCFA does apply, there is no conflict with California law, because the 9 FCFA is a restatement of the federal wire and mail fraud laws. California courts “employ 10 those same federal wire and mail fraud statutes.” Id. at 13-14. Defendants contend that 11 California state law addresses schemes to defraud, not only specific, discrete acts. Id. at 15. 12 Finally, Defendants contend that California has the greater interest in applying its law, 13 because California was where the alleged wrongs were committed. Id. at 16. Defendants 14 contend that Florida and California conspiracy law is virtually identical, so there is no 15 conflict between the two laws. Id. at 18. 16 Federal courts sitting in diversity “must apply the forum state’s choice of law rules 17 to determine the controlling substantive law.” Fields v. Legacy Health Sys., 413 F.3d 943, 18 950 (9th Cir. 2005) (quotation omitted). The foreign law proponent has the burden to show 19 that foreign law, rather than California law, should apply to the plaintiff’s claims. In re 20 Hyundai v. Kia Fuel Econ. Litig., 926 F.3d 539, 561 (9th Cir. 2019). To meet their burden, 21 the foreign law proponent must satisfy California’s three-step “governmental interest” test. 22 Id. 23 Under the first step of the governmental interest approach, the foreign law proponent must identify the applicable rule of law in each potentially 24 concerned state and must show it materially differs from the law of California 25 . . . . If . . . the trial court finds the laws are materially different, it must proceed to the second step and determine what interest, if any, each state has in having 26 its own law applied to the case . . . . Only if the trial court determines that the 27 laws are materially different and that each state has an interest in having its own law applied, thus reflecting an actual conflict, must the court take the 28 1 final step and select the law of the state whose interests would be ‘more impaired’ if its law were not applied. 2

3 Wash. Mut. Bank v. Sup. Ct., 15 P.3d 1071, 1080 (Cal. 2001) (citations omitted). The 4 preference is to apply California law, rather than choose the foreign law. Strassberg v. New 5 England Mut. Life Ins. Co., 575 F.2d 1262, 1264 (9th Cir. 1978). 6 Regarding Plaintiff’s Ninth and Tenth Counts, Plaintiff fails to make any argument 7 regarding step three of the governmental interest test. Even if Plaintiff meets his burden at 8 steps one and two of the governmental interest test, Plaintiff fails to show Florida’s interest 9 would be more impaired if the Court applies California law than California’s interest would 10 be if the Court applies Florida law. See Coufal Abogados v. AT&T, Inc., 223 F.3d 932, 936 11 (9th Cir. 2000) (“[W]ith respect to regulating or affecting conduct within its borders, the 12 place of the wrong has the predominant interest.”). Plaintiff fails to meet his burden to 13 demonstrate that the Court should apply Florida law, rather than California law, to 14 Plaintiff’s Ninth and Tenth Counts. 15 Regarding Plaintiff’s Twelfth Count, Plaintiff makes no effort to “identify the 16 applicable rule of law in each potentially concerned state and [] show it materially differs 17 from the law of California.” Wash. Mut. Bank, 15 P.3d at 1080. Plaintiff has not met his 18 burden to show the Court should apply Florida law. The Court applies California law to 19 Counts Nine, Ten, and Twelve. Plaintiff’s Motion Regarding Choice of Law (ECF No. 32) 20 is DENIED. 21 IV. MOTIONS TO DISMISS 22 Defendants move to dismiss Plaintiff’s Amended Complaint on the grounds it fails 23 to state a claim upon which relief can be granted pursuant to Federal Rule of Civil 24 Procedure 12(b)(6). (ECF No. 23-1 at 2). 25 A. Legal Standard 26 Federal Rule of Civil Procedure 12(b)(6) permits dismissal for “failure to state a 27 claim upon which relief can be granted.” In order to state a claim for relief, a pleading 28 “must contain . . . a short and plain statement of the claim showing that the pleader is 1 entitled to relief.” Fed. R. Civ. P. 8(a)(2). Dismissal under Rule 12(b)(6) “is proper only 2 where there is no cognizable legal theory or an absence of sufficient facts alleged to support 3 a cognizable legal theory.” Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 4 1041 (9th Cir. 2010) (quotation omitted). 5 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 6 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 7 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 8 “A claim has facial plausibility when the plaintiff pleads factual content that allows the 9 court to draw the reasonable inference that the defendant is liable for the misconduct 10 alleged.” Id. (citation omitted). However, “a plaintiff’s obligation to provide the ‘grounds’ 11 of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic 12 recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 13 (quoting Fed. R. Civ. P. 8(a)). A court is not “required to accept as true allegations that are 14 merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” Sprewell 15 v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). 16 B. Count One – Intentional Infliction of Emotional Distress 17 Anjali Levine contends that Plaintiff fails to state a claim for IIED, because 18 “Plaintiff’s distress flowing from frustrated communications and a failed relationship, with 19 alleged false statements along the way about Defendant Levine’s childhood, finances and 20 whereabouts . . . do not rise to the level needed” to show extreme and outrageous conduct. 21 (ECF No. 23-1 at 6-7). Louise Stokes contends that her statements to Plaintiff regarding 22 Anjali Levine’s well-being and childhood traumas “fail to constitute actionable conduct.” 23 Louise Stokes contends that the email from Plaintiff to Louise Stokes, which Plaintiff 24 attaches to his Amended Complaint, shows Plaintiff “liked” Louise Stokes, not that she 25 caused Plaintiff emotional distress. (ECF No. 24-1 at 6). Louise Stokes contends Plaintiff 26 has not alleged that Louise Stokes intended to cause Plaintiff emotional distress. Id. at 5. 27 Anjali Levine and Louise Stokes also contend that Plaintiff’s IIED claim is barred by the 28 applicable two-year statute of limitations. (ECF No. 23-1 at 7). 1 Plaintiff contends that he “does not claim ‘mere rudeness and insensitivity,’ . . . [h]e 2 claims specific physical harm on specific dates, well documented by medical records . . . 3 .” (ECF No. 26-1 at 12). Plaintiff also contends a three-year statute of limitations applies 4 to every Count in the Amended Complaint, because “[t]he essence of this lawsuit is 5 fraudulent misrepresentation.” Id. at 10-11. 6 To establish a claim for IIED, a plaintiff must show: 7 (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; 8 (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) 9 actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. 10

11 Hughes v. Pair, 209 P.3d 963, 976 (Cal. 2009) (quotation omitted). A defendant’s conduct 12 is “outrageous” when it is “so extreme as to exceed all abounds of that usually tolerated in 13 a civilized community.” Id. 14 Plaintiff makes the conclusory allegation that he “has suffered severe emotional 15 distress since discovering the reality of Defendants’ interactions with him.” (ECF No. 13 16 at 16). Plaintiff alleges that Anjali Levine told Plaintiff that he should kill himself. Plaintiff 17 alleges, however, that he told Anjali Levine he did not want to live “in order to test Anjali’s 18 reactions.” Id. at 14 (emphasis added). Plaintiff alleges that Anjali told Plaintiff to kill 19 himself after Plaintiff suspected Defendants’ “fraudulent intentions.” Id. at 14-15. Plaintiff 20 fails to state facts sufficient to show Anjali Levine or Louise Stokes’ conduct constitutes 21 “extreme and outrageous conduct.” See Nagy v. Nagy, 258 Cal. Rptr. 787, 791 (Ct. App. 22 1989) (“Although we do not condone respondent’s misrepresentations, they are similar to 23 a ‘betrayal,’ for which the law wisely should not provide a remedy.”). Anjali Levine and 24 Louise Stokes’ Motions to Dismiss Plaintiff’s First Count are GRANTED. 25 C. Count Two – Assault and Battery 26 Anjali Levine and Louise Stokes contend that Plaintiff’s Amended Complaint is 27 defective because Plaintiff pleads assault and battery as a single cause of action. (ECF No. 28 23-1 at 8-9). Anjali Levine and Louise Stokes contend that Plaintiff fails to state a claim 1 for battery or assault, because “no allegations suggest in any way that [Anjali Levine or 2 Louise Stokes] ever had physical contact with Plaintiff to make a ‘battery’ even possible.” 3 Anjali Levine and Louise Stokes contend that “[t]here are no facts alleged to show that 4 [Anjali Levine or Louise Stokes] acted with the intent to make physical contact with 5 Plaintiff, nor that [they] ever threatened to physically touch him.” Id. at 10. Plaintiff 6 requests “leave to Amend the current Complaint in order to state assault and battery 7 allegations as separate claims.” 8 The essential elements of a cause of action for battery are: (1) defendant touched plaintiff, or caused plaintiff to be touched, with the intent to harm or 9 offend plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff was 10 harmed or offended by defendant’s conduct; and (4) a reasonable person in plaintiff’s position would have been offended by the touching. 11

12 So v. Shin, 151 Cal. Rptr. 3d 257, 269 (Ct. App. 2013); California Civil Jury Instructions 13 (2017) (“CACI”) No. 1300. 14 The essential elements of a cause of action for assault are: (1) defendant acted with intent to cause harmful or offensive contact, or threatened to touch 15 plaintiff in a harmful or offensive manner; (2) plaintiff reasonably believed 16 she was about to be touched in a harmful or offensive manner or it reasonably appeared to plaintiff that defendant was about to carry out the threat; (3) 17 plaintiff did not consent to defendant’s conduct; (4) plaintiff was harmed; and 18 (5) defendant’s conduct was a substantial factor in causing plaintiff’s harm.

19 So, 151 Cal. Rptr. at 269; CACI No. 1301. 20 In the Amended Complaint, Plaintiff alleges that “Anjali and Louise intended to and 21 did repeatedly inflict bodily harm on Plaintiff.” (ECF No. 13 at 17). Plaintiff states no facts 22 to support this conclusory allegation. Plaintiff does not allege that Anjali Levine or Louise 23 Stokes touched Plaintiff or caused Plaintiff to be touched. Plaintiff fails to state a claim for 24 battery against Anjali Levine or Louise Stokes. 25 Plaintiff alleges that “Anjali assaulted Plaintiff by repeatedly seeking to convince 26 him to kill himself.” Id. Anjali Levine’s alleged statements telling Plaintiff to commit 27 suicide do not amount to an assault. See Plotnik v. Meihaus, 146 Cal. Rptr. 3d 585, 598 28 1 (Ct. App. 2012) (“Mere words, however threatening, will not amount to an assault.”). 2 Plaintiff does not allege Anjali Levine or Louise Stokes intended or threatened to touch 3 Plaintiff or cause him to be touched. Plaintiff does not allege he reasonably believed he 4 was about to be touched in a harmful or offensive manner. Plaintiff fails to state a claim 5 for assault against Anjali Levine or Louise Stokes. Anjali Levine and Louise Stokes’ 6 Motions to Dismiss Plaintiff’s Second Count are GRANTED. 7 D. Count Three - Violation of the Bane Act 8 Anjali Levine and Louise Stokes contend that Plaintiff fails to state a claim for 9 violation of the Bane Act, because Plaintiff does not allege that Anjali Levine or Louise 10 stokes “threatened, intimidated, or committed violence against him.” Anjali Levine asserts 11 that she and Plaintiff never met, so no battery was possible. Anjali Levine contends that 12 her alleged “stalking” cannot support a Bane Act claim, because “Plaintiff was unaware of 13 the conduct and thus felt no threat or intimidation.” Anjali Levine contends that Plaintiff’s 14 allegation that Anjali Levine encouraged Plaintiff to kill himself was not a credible threat 15 of violence. (ECF No. 23-1 at 12). Anjali Levine and Louise Stokes contend that Plaintiff 16 fails to allege that he was prevented from doing something he was entitled to do by law. 17 Id. at 13. Plaintiff contends that Anjali Levine and Louise Stokes’ coercion and threats of 18 violence were covert; Anjali Levine and Louise Stokes “worked together through fraud 19 and deceit to harm Plaintiff and then Anjali Levine sought to coerce Plaintiff into 20 committing suicide.” (ECF No. 26-1 at 13). 21 The Bane Act permits an individual to pursue a civil action for damages where 22 another person “interferes by threat, intimidation, or coercion, or attempts to interfere by 23 threat, intimidation, or coercion, with the exercise or enjoyment by any individual or 24 individuals of rights secured by the Constitution or laws of the United States, or of the 25 rights secured by the Constitution or laws of this state.” Cal. Civ. Code § 52.1(b). “The 26 essence of a Bane Act claim is that the defendant, by the specified improper means (i.e., 27 ‘threat[], intimidation or coercion’), tried to or did prevent the plaintiff from doing 28 something he or she had the right to do under the law or to force the plaintiff to do 1 something that he or she was not required to do under the law.” Austin B. v. Escondido 2 Union Sch. Dist., 57 Cal. Rptr. 3d 454, 472 (Ct. App. 2007) (quoting Jones v. Kmart Corp., 3 949 P.2d 941, 946 (Cal. 1998)). 4 Speech alone is not sufficient to support an action brought pursuant to subdivision (a) or (b), except upon a showing that the speech itself threatens 5 violence against a specific person or group of persons; and the person or group 6 of persons against whom the threat is directed reasonably fears that, because of the speech, violence will be committed against them or their property and 7 that the person threatening violence had the apparent ability to carry out the 8 threat.

9 Cal. Civ. Code § 52.1(k). 10 Plaintiff fails to identify any “rights” that Anjali Levine or Louise Stokes sought to 11 interfere with. Cal. Civ. Code § 52.1(b). Plaintiff does not allege that Anjali Levine or 12 Louise Stokes threatened violence, that Plaintiff reasonably feared violence would be 13 committed against him or his property, and that Anjali Levine and Louise Stokes had the 14 ability to carry out any threatened violence. Cal. Civ. Code § 52.1(k). Plaintiff fails to state 15 facts sufficient to show Anjali Levine or Louise Stokes violated the Bane Act. Anjali 16 Levine and Louise Stokes’ Motions to Dismiss Plaintiff’s Third Count are GRANTED. 17 E. Count Four – Invasion of Privacy 18 Anjali Levine and Louise Stokes contend that Plaintiff fails to state a claim for 19 invasion of privacy, because “Plaintiff does not claim that Defendants gained unconsented 20 access to his home or to any personal or private information.” (ECF No. 23-1 at 14). Anjali 21 Levine and Louise Stokes also contend that Plaintiff’s claim for invasion of privacy is 22 barred by the applicable one-year statute of limitations. Id. at 15. Plaintiff contends that he 23 “was duped into performing certain actions based on the defendants’ misrepresentations.” 24 Therefore, any personal disclosure was not voluntary. (ECF No. 26-1 at 13). Plaintiff 25 contends that each cause of action is subject to the three-year statute of limitations for fraud 26 or mistake. Id. at 11. 27 28 1 The tort of intrusion into private affairs, or intrusion upon seclusion, requires: (1) 2 the defendant’s intentional intrusion into a private place, conversation, matter, affairs, or 3 concerns; (2) in a manner highly offensive to a reasonable person. Taus v. Loftus, 151 P.3d 4 1185, 1212 (Cal. 2007). 5 To prove actionable intrusion, the plaintiff must show the defendant penetrated some zone of physical or sensory privacy surrounding, or obtained 6 unwanted access to data about, the plaintiff. The tort is proven only if the 7 plaintiff had an objectively reasonable expectation of seclusion or solitude in the place, conversation or data source. 8

9 Shulman v. Group W Prods., Inc., 955 P.2d 469, 490 (Cal. 1998). 10 Plaintiff does not allege facts from which the Court can infer that Anjali Levine or 11 Louise Stokes “penetrated some zone of physical or sensory privacy surrounding, or 12 obtained unwanted access to data.” Plaintiff makes the conclusory allegation that Anjali 13 Levine was stalking him. (ECF No. 13 at 10). Plaintiff fails to allege facts to show Anjali 14 Levine intruded into any “secluded” area where Plaintiff has a reasonable expectation of 15 privacy. See Sanders v. Am. Broad. Cos., 978 P.2d 67, 71 (Cal. 1999) (“The first element 16 is not met when the Plaintiff has merely been observed, or even photographed or recorded, 17 in a public place.”). Anjali Levine and Louise Stokes’ Motions to Dismiss the Fourth Count 18 are GRANTED. 19 F. Count Five – Civil Harassment 20 Anjali Levine and Louise Stokes contend that Plaintiff’s claim for harassment under 21 section 527.6(b)(3) of the California Code of Civil Procedure2 is an “expedited process, [] 22 not properly included as a cause of action in a complaint.” (ECF No. 23-1 at 16). Anjali 23 Levine and Louise Stokes contend that Plaintiff does not state a claim for harassment 24 because Plaintiff does not state facts that show Anjali Levine or Louise Stokes threatened 25 violence or engaged in “a knowing and willful course of conduct directed at Plaintiff.” 26

27 2 The Parties mistakenly reference section 527.6 of the “California Civil Code” in the Amended 28 1 Anjali Levine and Louise Stokes contend that Plaintiff’s claim is barred by either a two- or 2 three-year statute of limitations. Id. at 17. Plaintiff contends that his Amended Complaint 3 is “explicit,” and he “most certainly claims and outlines” conduct that falls under section 4 527.6(b)(3). (ECF No. 26-1 at 14). 5 California Code of Civil Procedure section 527.6 provides: “A person who has 6 suffered harassment as defined in subdivision (b) may seek a temporary restraining order 7 and an order after hearing prohibiting harassment as provided in this section.” Cal. Code 8 Civ. Proc. § 527.6(a)(1). “Harassment” is: 9 Unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, 10 or harasses the person, and that serves no legitimate purpose. The course of 11 conduct must be that which would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional 12 distress to the petitioner. 13 Cal. Code Civ. Proc. § 527.6(b)(3). Section 527.6 “was enacted to provide an expedited 14 procedure for preventing ‘harassment’ as defined.” Byers v. Cathcart, 67 Cal. Rptr. 2d 398, 15 402 (Ct. App. 1997) (emphasis added). Section 527.6 “provides for temporary restraining 16 orders to handle immediate problems, followed quickly by a court hearing on a limited- 17 scope antiharassment injunction—normally within 15 days, but in no case more than 22 18 days even if time is extended for good cause.” Id. at 402-03 (citing Cal. Code Civ. Proc. § 19 527.6(c)-(d)). Section 527.6 “does not allow for final resolution of disputed rights.” Byers, 20 67 Cal. Rptr. at 403. 21 Here, Plaintiff seeks final resolution of disputed rights; he does not seek a temporary 22 injunction. Plaintiff does not assert any reason that a cause of action for a violation of 23 section 527.6 is properly included in the Amended Complaint. Anjali Levine and Louise 24 Stokes’ Motions to Dismiss Plaintiff’s Fifth Count are GRANTED. 25 G. Count Six – Stalking 26 Anjali Levine and Louise Stokes contend that Plaintiff fails to state a claim for 27 stalking, because he does not allege Anjali Levine or Louise Stokes engaged in a pattern 28 1 of conduct intended to harass, alarm, or place Plaintiff under surveillance. (ECF No. 23-1 2 at 18). Anjali Levine and Louise Stokes contend they did not make a threat that would 3 cause Plaintiff to fear for his safety. Id. at 18-19. Plaintiff contends that he “feared for his 4 personal wellbeing and that he demanded that Anjali’s ‘visits’ stop for over three years, 5 but that she continued.” (ECF No. 26-1 at 14-15). 6 Under section 1708.7 of the California Civil Code, an individual is liable for the tort 7 of stalking when a plaintiff shows: 8 (1) The defendant engaged in a pattern of conduct the intent of which was to follow, alarm, place under surveillance, or harass the plaintiff. In order to 9 establish this element, the plaintiff shall be required to support his or her 10 allegations with independent corroborating evidence.

11 (2) As a result of that pattern of conduct, either of the following occurred: 12 (A) The plaintiff reasonably feared for his or her safety . . . . 13

14 (B) The plaintiff suffered substantial emotional distress, and the pattern of conduct would cause a reasonable person to suffer 15 substantial emotional distress. 16 (3) One of the following: 17

18 (A) The defendant, as a part of the pattern of conduct specified in paragraph (1), made a credible threat with either (i) the intent to place 19 the plaintiff in reasonable fear for his or her safety, . . . or (ii) reckless 20 disregard for the safety of the plaintiff . . . . In addition, the plaintiff must have, on at least one occasion, clearly and definitively demanded 21 that the defendant cease and abate his or her pattern of conduct and the 22 defendant persisted in his or her pattern of conduct unless exigent circumstances make the plaintiff’s communication of the demand 23 impractical or unsafe. 24 (B) The defendant violated a restraining order . . . . 25

26 Cal. Civ. Code § 1708.7(a). 27 28 1 Assuming that Plaintiff sufficiently alleges Anjali Levine or Louise Stokes engaged 2 in a prohibited pattern of conduct, Plaintiff fails to “support his . . . allegations with 3 independent corroborating evidence” as required by subdivision (a)(1). The Exhibits 4 Plaintiff attaches to his Amended Complaint show that Plaintiff actively reached out to 5 Anjali Levine and Louise Stokes, wanted to meet Anjali Levine in person, and enjoyed his 6 conversations with Anjali Levine and Louise Stokes. See, e.g., ECF No. 16-2 at 1 (April 3, 7 2012, Facebook Messenger chain, Louise Stokes: “I would love to talk;” Plaintiff: “sounds 8 great!”); ECF No. 15-5 at 2 (November 18, 2013, email from Plaintiff to Louise Stokes 9 stating, “I’ve tried to reach out to you as much as I know how since I first met Anjali;” and 10 “I was only too happy to spend hours on the phone”); ECF No. 17-3 at 1 (December 25, 11 2013, email from Plaintiff to Louise Stokes stating, “Anjali . . . can NOT run again . . . . 12 Please call me”); ECF No. 17-5 at 1 (January 30, 2014, email from Plaintiff to Louise 13 Stokes stating, “Are [you and Anjali Levine] planning on meeting me at some point, or just 14 leaving?”). Anjali Levine’s July 16, 2017, email to Plaintiff, stating that she “will pay 15 restitution for the emotional harm I caused you” (ECF No. 18-4 at 1), is insufficient to 16 show Anjali Levine stalked Plaintiff. Plaintiff also does not allege that Anjali Levine or 17 Louise Stokes made a “credible threat” as required by subdivision (a)(3). Anjali Levine 18 and Louise Stokes’ Motions to Dismiss Plaintiff’s Sixth Count are GRANTED. 19 H. Counts Seven Through Ten – Fraud and Deceit 20 Anjali Levine and Louise Stokes contend that Plaintiff fails to plead fraud with 21 particularity as required by Federal Rule of Civil Procedure 9(b). (ECF No. 23-1 at 19). 22 Anjali Levine and Louise Stokes contend that Plaintiff requires Anjali Levine and Louise 23 Stokes to “guess at [their] hazard which statements and which acts, flowing back to 2011, 24 and which of the 25 Exhibits, are supposedly being relied on by Plaintiff.” Anjali Levine 25 and Louise Stokes contend that their conversations with Plaintiff are non-actionable 26 personal opinions and expressions of statement of mind. Id. at 20. Louise Stokes contends 27 that Plaintiff fails to allege that Louise Stokes’ statements induced Plaintiff to pay for 28 anything. Louise Stokes also contends Plaintiff’s Seventh and Eighth Counts are barred by 1 the three-year statute of limitations. (ECF No. 24-1 at 19). Plaintiff contends his assertion 2 that Anjali Levine and Louise Stokes targeted Orthodox Jewish men is fundamental to 3 Anjali Levine and Louise Stokes’ “malicious intentions.” (ECF No. 26-1 at 15). 4 Claims sounding in fraud or mistake must comply with the heightened pleading 5 requirements of Federal Rule of Civil Procedure 9(b), which requires that a complaint 6 “must state with particularity the circumstances constituting fraud or mistake.” Rule 9(b) 7 “requires . . . an account of the time, place, and specific content of the false representations 8 as well as the identities of the parties to the misrepresentations.” Swartz v. KPMG LLP, 9 476 F.3d 756, 764 (9th Cir. 2007) (quotation omitted); see also Vess v. Ciba-Geigy Corp. 10 USA, 317 F.3d 1097, 1106 (9th Cir. 2003) (averments of fraud must be accompanied by 11 “the who, what, when, where, and how of the misconduct charged”) (quotation omitted). 12 “To comply with Rule 9(b), allegations of fraud must be specific enough to give defendants 13 notice of the particular misconduct which is alleged to constitute the fraud charged so that 14 they can defend against the charge and not just deny that they have done anything wrong.” 15 Bly-Magee v. Cal., 236 F.3d 1014, 1019 (9th Cir. 2001) (quotation omitted). 16 In a suit involving multiple defendants, “there is no absolute requirement that . . . 17 the complaint must identify false statements made by each and every defendant.” Swartz, 18 476 F.3d at 764 (emphasis in original). “On the other hand, Rule 9(b) does not allow a 19 complaint to merely lump multiple defendants together but requires plaintiffs to 20 differentiate their allegations when suing more than one defendant and inform each 21 defendant separately of the allegations surrounding his alleged participation in the fraud.” 22 Id. at 764-65 (quotation and alterations omitted). “[A] plaintiff must, at a minimum, 23 identify the role of each defendant in the alleged fraudulent scheme.” Id. at 765 (quotation 24 and alterations omitted). 25 “The elements of fraud, which give rise to the tort action for deceit, are (a) 26 misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of 27 falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; 28 and (e) resulting damage.” Lazar v. Sup. Ct., 909 P.2d 981, 984 (Cal. 1996) (quoting 5 1 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 676, p. 778). California’s tort of 2 deceit has been codified at section 1709 of the California Civil Code, which provides that 3 “[o]ne who willfully deceives another with intent to induce him to alter his position to his 4 injury or risk, is liable for any damage which he thereby suffers.” A “deceit” under section 5 1709 is any one of the following: 1) “[t]he suggestion, as a fact, of that which is not true, 6 by one who does not believe it to be true;” 2) “[t]he assertion, as a fact, of that which is not 7 true, by one who has no reasonable ground for believing it to be true;” 3) “[t]he suppression 8 of a fact, by one who is bound to disclose it, or who gives information of other facts which 9 are likely to mislead for want of communication of that fact;” or 4) “[a] promise, made 10 without any intention of performing it.” Cal. Civ. Code § 1710. 11 Plaintiff alleges that Louise Stokes “regularly presented [herself] as needing 12 money,” but he fails to state facts that show Louise Stokes intended to induce Plaintiff to 13 give her money. ECF No. 13 at 21; see Ashburn v. Miller, 326 P.2d 229, 238 (Ct. App. 14 1958) (“Intent to defraud is not the essence of a suit for deceit; it is the intent to induce 15 action by the other party that counts.”). Plaintiff alleges that “Defendants outright requested 16 money from Plaintiff,” but he fails to connect this request to any misrepresentation. 17 Plaintiff fails to allege “the who, what, when, where, and how of the misconduct charged.” 18 Vess, 317 F.3d at 1106. Plaintiff also fails to connect his claimed damages—“$8,000 in 19 gifts and cash 2011-2017 based on Defendants’ misrepresentations”—to any alleged 20 misrepresentations. (ECF No. 13 at 21). Plaintiff’s allegations do not meet the heightened 21 pleading standard required to state a claim for fraud or deceit under Rule 9(b). Anjali 22 Levine and Louise Stokes’ Motions to Dismiss the Seventh through Tenth Counts are 23 GRANTED. 24 I. Count Eleven – RICO Violation for Mail and Wire Fraud 25 Anjali Levine and Louise Stokes contend that Plaintiff “only states in the most 26 conclusory terms a scheme or plan on the part of Anjali and Louise to engage in mail 27 fraud.” (ECF No. 23-1 at 21). Anjali Levine contends that Plaintiff fails to plead the 28 contents of any writing allegedly authored by Anjali Levine. Anjali Levine and Louise 1 Stokes contend that Plaintiff’s gifts of money and property are not a cognizable form of 2 damages under RICO. Id. at 22. Anjali Levine and Louise Stokes also contend that 3 Plaintiff’s claim is barred by the applicable four-year statute of limitations. Id. at 23. 4 Plaintiff contends that the gifts he sent Anjali Levine and Louise Stokes were not voluntary 5 “in the context of allegations of fraud.” Plaintiff contends that he states damages in the 6 amount of “$8,000 in gifts and cash.” Plaintiff also contends that the statute of limitations 7 has not expired because he did not discover Defendants’ misrepresentations until June 27, 8 2017. (ECF No. 26-1 at 16). 9 To state a RICO violation, a plaintiff must show “(1) conduct (2) of an enterprise (3) 10 through a pattern (4) of racketeering activity (known as ‘predicate acts’) (5) causing injury 11 to plaintiff’s business or property.” Living Designs, Inc. v. E.I. DuPont de Nemours & Co., 12 431 F.3d 353, 361 (9th Cir. 2005) (quotation omitted). Predicate acts can include mail or 13 wire fraud, which share the same elements: 14 (1) the defendants formed a scheme or artifice to defraud; (2) the defendants used the United States mails [or wires] or caused a use of the United States 15 mails [or wires] in furtherance of the scheme; and (3) the defendants did so 16 with the specific intent to deceive or defraud.

17 Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1399-1400 (9th Cir. 18 1986); 18 U.S.C. §§ 1341, 1343. 19 Plaintiff makes the conclusory allegations that Anjali Levine and Louise Stokes 20 devised “a scheme to defraud” and that Anjali Levine told Plaintiff she had “conducted an 21 analogous scheme” in the past. (ECF No. 13 at 22, 26). Plaintiff does not state facts to 22 support these allegations. Plaintiff fails to meet his burden under Rule 9(b). Anjali Levine 23 and Louise Stokes’ Motions to Dismiss Plaintiff’s Eleventh Count are GRANTED. 24 J. Count Twelve – Civil Conspiracy 25 Anjali Levine, Louise Stokes, and Anil Stokes contend that “a civil conspiracy is not 26 an independent tort.” (ECF No. 23-1 at 23). Plaintiff’s conspiracy claim fails, because 27 Plaintiff’s claims for the underlying torts fail. Id. at 24. Louise Stokes contends that 28 1 Plaintiff fails to plead facts to demonstrate that she entered into a common plan with Anjali 2 Levine to commit a tort. (ECF No. 24-1 at 25). Anil Stokes contends that he is “not 3 mentioned once in the claim for conspiracy” and that Plaintiff fails to allege Anil Stokes 4 entered into an agreement with the other Defendants. (ECF No. 25-1 at 6). Plaintiff 5 contends that Defendants have not challenged civil conspiracy under Florida law, so they 6 have not challenged Plaintiff’s Twelfth Count. (ECF No. 26-1 at 16).3 7 Conspiracy is not a cause of action, but a legal doctrine that imposes liability on persons who, although not actually committing a tort themselves, share 8 with the immediate tortfeasors a common plan or design in its perpetration. 9 By participation in a civil conspiracy, a coconspirator effectively adopts as his or her own the torts of other coconspirators within the ambit of the conspiracy. 10 In this way, a coconspirator incurs tort liability co-equal with the immediate 11 tortfeasors.

12 Applied Equip. Corp. v. Litton Saudi Arabia Ltd. (1994) 869 P.2d 454, 457 (Cal. 1994). 13 The elements of a civil conspiracy are 1) the formation of a group of two or more persons 14 who agreed to a common plan or design to commit a tortious act; 2) a wrongful act 15 committed pursuant to the agreement; and 3) resulting damages. Id. 16 “Standing alone, a conspiracy does no harm and engenders no tort liability.” Id. 17 Without an underlying tort, a claim for conspiracy cannot stand. See Okun v. Sup. Ct., 629 18 P.2d 1369, 1376 (Cal. 1981) (“A complaint for civil conspiracy states a cause of action 19 only when it alleges the commission of a civil wrong that causes damage. Though 20 conspiracy may render additional parties liable for the wrong, the conspiracy itself is not 21 actionable without a wrong.”). A motion to dismiss the conspiracy cause of action should 22 be granted if no actionable conduct is alleged. Id. 23 Here, Plaintiff does not state facts to show any Defendants conspired with another 24 to commit a tort. Plaintiff fails to state facts showing Defendants agreed to commit each of 25 the wrongful acts alleged in the Complaint, instead generally alleging that Louise Stokes 26 27 28 1 “reinforced” Anjali Levine’s “false narrative.” Id. Plaintiff’s conclusory allegations are 2 insufficient. Defendants’ Motions to Dismiss Plaintiff’s Twelfth Count are GRANTED. 3 K. Count Fourteen4 – Aiding and Abetting 4 Anil Stokes contends that Plaintiff fails to state a claim for aiding and abetting, 5 because he has failed to plead “knowledge” or “intent.” (ECF No. 25-1 at 8). Plaintiff does 6 not respond to Anil Stokes’ contention. 7 Aiding and abetting requires the commission of an underlying tort. See CACI 3610. 8 Liability may . . . be imposed on one who aids and abets the commission of an intentional tort if the person (a) knows the other’s conduct constitutes a 9 breach of duty and gives substantial assistance or encouragement to the other 10 to so act or (b) gives substantial assistance to the other in accomplishing a tortious result and the person’s own conduct, separately considered, 11 constitutes a breach of duty to the third person. 12 Am. Master Lease LLC v. Idanta Partners, Ltd., 225 Cal. App. 4th 1451, 1475 (Ct. App. 13 2014). To plead aiding and abetting, the plaintiff must allege that the defendant “had actual 14 knowledge of the specific primary wrong” being committed. Casey v. Bank Nat. Assn., 26 15 Cal. Rptr. 3d 401, 406 (Ct. App. 2005). 16 Plaintiff alleges Anil Stokes lived with Anjali Levine and Louise Stokes, was 17 “aware” of Anjali Levine and Louise Stokes’ interactions with Plaintiff, and paid for Anjali 18 Levine’s therapy, flights to see Plaintiff, and gifts for Plaintiff and his children. (ECF No. 19 13 at 32). Plaintiff fails to allege facts from which the Court can infer that Anil Stokes had 20 knowledge of any specific, primary wrong. Anil Stokes’ Motion to Dismiss Plaintiff’s 21 Fourteenth Count is GRANTED. 22 /// 23 /// 24 /// 25 26 27 4 Plaintiff and Defendants refer to the “aiding and abetting” count as “Count Thirteen.” However, the Amended Complaint states that Count Thirteen is for “Stalking & Harassment.” (ECF No. 13 at 30). 28 1 V. MOTION TO STRIKE 2 Defendants move to strike certain allegations in the Amended Complaint on the 3 grounds that they are redundant, immaterial, impertinent, or scandalous under Federal Rule 4 of Civil Procedure 12(f) (ECF No. 22-1). 5 A. Legal Standard 6 Under Federal Rule of Civil Procedure 12(f), “[t]he court may strike from a pleading 7 an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” 8 “Redundant” matter is needlessly repetitive. See Cal. Dep’t of Toxic Substances Control v. 9 Alco Pac., Inc., 217 F. Supp. 2d 1028, 1033 (C.D. Cal. 2002). “Immaterial” matter “has no 10 essential or important relationship to the claim for relief or the defenses being pleaded.” 11 Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993) (quoting 5 Charles A. Wright 12 & Arthur R. Miller, Federal Practice and Procedure § 1382, at 706-07 (1990)), rev’d on 13 other grounds, 510 U.S. 517 (1994). “‘Impertinent’ matter consists of statements that do 14 not pertain, and are not necessary, to the issues in question.” Id. at 711. Scandalous matter 15 “cast a cruelly derogatory light on a party or other person.” In re 2TheMart.com, Inc. Sec. 16 Litig., 114 F. Supp. 2d 955, 965 (C.D. Cal. 2000). Motions to strike should only be granted 17 when it is “clear that it can have no possible bearing on the subject matter of the litigation,” 18 Illinois Nat. Ins. Co. v. Nordic PCL Const., Inc., 870 F. Supp. 2d 1015, 1039 (D. Haw. 19 2012), and should not be used “to dismiss a claim for damages on the basis it is precluded 20 as a matter of law,” Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 976 (9th Cir. 21 2010). 22 B. Immaterial, Impertinent, and Redundant Language 23 Defendants move to strike certain allegations in the Amended Complaint on the 24 grounds that they are “historical matter” that are immaterial, impertinent, and redundant. 25 Specifically, Defendants move the Court to strike paragraphs 10-21, 25, 27, 31-33, 35, 36, 26 38, and 39, and paragraph “31” on page 13 of the Amended Complaint. (ECF No. 22-1 at 27 10). Plaintiff contends that the allegations in the Amended Complaint are not “genuinely 28 and obviously irrelevant to the stated causes of action.” (ECF No. 26-1 at 7). 1 The allegations in the paragraphs Defendants move to strike have potential bearing 2 on the subject matter of this litigation. Defendants’ communications with Plaintiff, the 3 failed attempts to meet, and alleged false statements (paragraphs 10-21) have a direct 4 bearing on each of Plaintiff’s claims. The gifts Anjali Levine allegedly sent Plaintiff 5 (paragraphs 25, 25) are material to Plaintiff’s claims and damages. The actions described 6 in paragraphs 31-33, 35, 36, 38, and 39, and paragraph “31” on page 13, are material to 7 Plaintiff’s claims. The Court cannot conclude these allegations have no possible bearing 8 on any of Plaintiff’s claims. Defendants’ Motion to Strike paragraphs 10-21, 25, 27, 31- 9 33, 35, 36, 38, and 39, and paragraph “31” on page 13, is DENIED. 10 C. Scandalous Matter 11 Defendants move to strike certain Exhibits and allegations in the Amended 12 Complaint on the grounds that they “are scandalous and ha[ve] no legal relationship to any 13 of Plaintiff’s 14 Counts.” (ECF No. 22-1 at 11). Specifically, Defendants move to strike 14 paragraphs 4, 6, 10, 13, 27, 29, 74, 75, 91, 92, and 93, and all the incorporated Exhibits. 15 Id. at 12. Plaintiff contends that “[i]t is not scandalous, as here, to allege that a defendant 16 being sued for fraud is a fraudster.” (ECF No. 26-1 at 6). 17 None of the paragraphs or Exhibits challenged by Defendants allege scandalous 18 matter. All of the allegations are material to jurisdiction, venue, or Plaintiff’s claims against 19 Defendants. Defendants do not show how the allegations “cast a cruelly derogatory light.” 20 In re 2TheMart.com, Inc. Sec. Litig., 114 F. Supp. 2d at 965. Defendants’ Motion to Strike 21 paragraphs 4, 6, 10, 13, 27, 29, 74, 75, 91, 92, and 93, and all the incorporated Exhibits, is 22 DENIED. 23 D. Redundant Claims 24 Defendants contend the Court should strike certain Counts and allegations in the 25 Amended Complaint, because they are based on Florida Law and are therefore repetitive 26 of Plaintiff’s California law claims for the same conduct. Defendants contend that the Court 27 should strike Plaintiff’s Eighth, Ninth, Tenth, and Twelfth Counts, paragraph 50 of the 28 Fourth Count, and paragraphs 104, 105, and 110 of the Thirteenth Count, because Plaintiff 1 improperly alleges violations of Florida law in a California law complaint. Defendants 2 contend that Plaintiff’s Thirteenth count for stalking and harassment is redundant of 3 Plaintiff’s two other claims for stalking and harassment. (ECF No. 22-1 at 14). Plaintiff 4 contends that choice of law issues are not properly raised in a motion to strike. (ECF No. 5 26-1 at 7). 6 The Court has dismissed many of the Counts Defendants seek to strike: Four, Eight, 7 Nine, Ten, and Twelve. Defendants’ Motion to Strike these counts is moot. Regarding the 8 Thirteenth Count, a motion to strike is not a proper filing in which to raise substantive 9 choice of law issues. See Tattersalls Ltd. v. Wiener, No. 3:17-cv-1125-BTM-JLB, 2019 10 U.S. Dist. LEXIS 26238, at *10 (S.D. Cal. Feb. 19, 2019) (“The Court declines to rule on 11 choice-of-law issues in a motion to strike.”). Defendants’ Motion to Strike the Eighth, 12 Ninth, Tenth, Twelfth, and Thirteenth Counts, paragraph 50 of the Fourth Count, and 13 paragraphs 104, 105, and 110 of the Thirteenth Count, is DENIED. 14 E. Impertinent Request for Relief 15 Defendants contend that Plaintiff’s request for punitive damages and attorneys’ fees 16 and costs is impertinent, because “[n]ot all of Plaintiff’s claims . . . support the recovery of 17 punitive damages and attorneys’ fees and costs.” (ECF No. 22-1 at 18). 18 Defendants’ request is precluded by the holding in Whittlestone. The court in 19 Whittlestone held that “Rule 12(f) of the Federal Rules of Civil Procedure does not 20 authorize a district court to dismiss a claim for damages on the basis it is precluded as a 21 matter of law.” 618 F.3d at 975; see id. at 974 (“[T]he claim for damages is not impertinent, 22 because whether these damages are recoverable pertains directly to the harm being 23 alleged.”). Here, Plaintiff’s requests for punitive damages and attorneys’ fees and costs are 24 directly related to the harms Plaintiff alleges. See Powell v. Wells Fargo Home Mortg., No. 25 14-cv-04248-MEJ, 2017 U.S. Dist. LEXIS 97607, at *1 (N.D. Cal. Jun. 23, 2017) (finding 26 that the defendant could not raise issues of punitive damages or attorneys’ fees in a motion 27 to strike because Whittlestone has rejected these claims as a proper basis for a Rule 12(f) 28 motion). Defendants’ Motion to Strike portions of Plaintiff’s prayer for relief is DENIED. 1 || VI. CONCLUSION 2 IT IS HEREBY ORDERED THAT Anjali Levine’s Motion to Set Aside Entry of 3 || Default Pursuant to Fed. R. Civ. P. 55(c) and Quash Service of Process (ECF No. 19) is 4 ||GRANTED. Defendants’ Motion to Strike Portions of First Amended Complaint (ECF No. 5 is DENIED. Defendants’ Motions to Dismiss First Amended Complaint for Failure to 6 || State a Claim Upon Which Relief Can Be Granted Pursuant to Fed. R. Civ. P. 12(b)(6) 7 || CECF Nos. 23, 24, 25) are GRANTED. Plaintiff's Motion Regarding Choice of Law (ECF 8 || No. 32) is DENIED. 9 IT IS FURTHER ORDERED that Plaintiff shall file any motion for leave to amend 10 || the Complaint within 30 days of the date of this Order. 11 || Dated: October 30, 2019 Nitta Z. A a 12 Hon, William Q. Hayes 13 United States District Court 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28